Porter v. Pico

Citations

• 55 Cal. 165
• 1 Colo. L. Rep. 25

Syllabus

<p>Sheriff's Deed — Execution Sale—Attachment — Relation. — A sheriff’s deed, executed in pursuance of an execution sale, under a judgment rendered in an attachment suit, takes effect from the levy of the attachment. The attachment lien, though merged in the judgment, still exists, so as to confer a priority in the lien of the judgment, and this result is attained, in an indirect way, by applying the doctrine of relation to the series of acts necessary to be done to transfer title to the property attached.</p> <p>Attachment — Return—Presumption.— A return upon an attachment, (or other mesne process) that the officer duly levied the same, is defective in not stating the acts done by the officer in making the service; but such a return is prima facie sufficient to show a due execution, though the presumption may be controverted.</p> <p>Id.—Id.—Id.—Conflict of Evidence—Findings.—In such a case, where the officer testified that it was his custom to levy the attachment by first posting the attachment, with the notice of levy, upon the land, and afterward filing the same in the Recorder’s office, (being the reverse of the order prescribed by the statute): Held, there was a conflict of evidence, and the finding of the Court, that the attachment was duly levied, was conclusive.</p> <p>Id.—Irregularity.—The lien of an attachment is not affected by any irregularities in the attachment: but such irregularities are waived by the defendant when he appears, and answers, without taking advantage of them by motion or otherwise.</p> <p>Injunction-Cloud upon Title—Execution Sale.—Where a sheriff’s sale, though ineffectual to pass title to a purchaser, would yet be sufficient to cast a cloud upon the plaintiff’s title, a Court of Equity will enjoin the sale.</p> <p>Id.— Id.— Id.— Execution — Attachment — Sheriff’s Deed -Ex-Sheriff — Relation.—A sheriff’s deed, made upon an execution sale under a judgment in an attachment suit, conveyed to the plaintiff all the right, title, and intere